Federal Court of Australia

McDonald v Commonwealth of Australia (No 2) [2025] FCA 631

ORDERS

THE COURT ORDERS THAT:

1.    Orders 4 and 5 of the Orders of Registrar Colbran dated 9 December 2024 are vacated.

2.    In lieu thereof and subject to further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) there be no publication or other disclosure of the material listed in Annexure A to these orders, to the persons identified in Annexure A, on the ground that it is necessary to prevent prejudice to the proper administration of justice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

1    Pursuant to orders made on 17 April 2025, the applicant applied for suppression orders over certain documents tendered in evidence during the settlement approval process, such orders to replace interim orders made prior to the completion of the settlement approval hearings. In these reasons I shall describe the orders sought as ongoing suppression orders, because the intention of the applicant is that these orders remain in place beyond the completion of the settlement distribution, and in that sense be long term orders. For the most part, the Court has accepted that position.

Brief chronology

2    Some of the submissions supporting the application rely upon claims of legal professional privilege in some of the identified documents.

3    For this reason, it is helpful to know that on 11 May 2021, the applicant and LLS Fund Services Pty Ltd (the funder) entered into a Litigation Funding Agreement (LFA). The conditional costs agreement between the applicant, Ms McDonald, and Shine Lawyers was signed by Ms McDonald on 10 May 2021. It was accepted by counsel at the hearing of the application for ongoing suppression orders that 10 May 2021 was, on the evidence, the only available date from which the Court could infer the applicant retained Shine. It is also not in dispute, and well supported by the evidence adduced for the purposes of settlement approval, that this proceeding had been in contemplation, and in active preparation, for several years before these dates, and was connected in nature and substance to earlier proceedings in Queensland and in Western Australia.

4    Two settlement approval hearings occurred in this matter. The first settlement approval hearing was conducted on 7 November 2024 in Alice Springs. The second settlement approval hearing was held on 17 December 2024 in the Court’s Victorian Registry. Orders approving the settlement occurred in three tranches, with the first tranche of final orders made on 14 November 2024 following the first settlement approval hearing. The second tranche of orders were made on 20 December 2024. Written reasons were handed down on 17 April 2025 (McDonald v Commonwealth of Australia [2025] FCA 380), with a series of essentially procedural orders made on that date, and a draft third tranche of substantive orders supplied to the parties the same day. The parties were given an opportunity to confer on those draft orders, which were then made, in substantially the same form as the draft, on 28 May 2025.

5    In addition to some interim suppression orders, on 9 December 2024, Registrar Colbran had made orders that certain documents be uplifted from the court file and redacted, on the basis that the redacted passages were not read, and do not form part of the court record. As a consequence, some of the documents at issue in this application already contain material that is redacted, but for a different reason – because those passages never did form part of the Court’s evidentiary record.

Applicable provisions and principles

6    Section 37AF of the Federal Court Act 1976 (Cth) provides:

(1)     The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)     information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

 (b)     information that relates to a proceeding before the Court and is:

(i)     information that comprises evidence or information about evidence; or

(ii)     information obtained by the process of discovery; or

(iii)     information produced under a subpoena; or

(iv)     information lodged with or filed in the Court.

(2)     The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

7    Section 37AG of the Act provides:

(1)     The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)     the order is necessary to prevent prejudice to the proper administration of justice;

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)     the order is necessary to protect the safety of any person;

(d)     the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)     A suppression order or non-publication order must specify the ground or grounds on which the order is made.

8    Section 37AJ of the Act provides that:

(1)     A suppression order or non-publication order operates for the period decided by the Court and specified in the order.

(2)     In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3)     The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

9    I have set out my general approach to the making of orders under s 37AF in Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839 at [22]-[51]. I adopt the same approach here. The principles have also been helpfully collected and described by Stellios J in Australian Securities and Investments Commission v eToro AUS Capital Limited [2025] FCA 100 at [13]–[17], albeit with more of a focus on orders sought to protect commercial confidentiality. And see, most recently, Leigh v National Disability Insurance Agency [2025] FCA 623 (Vandongen J).

10    A regularly cited authority on the operation of s 37AF is the Full Court decision in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 at [7]-[9]:

The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the [Act] are fairly well settled.

Suppression or non-publication orders should only be made in exceptional circumstances … That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest of open justice … The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle …

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word” … It is nevertheless not to be given an unduly narrow construction … The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it … There is no exercise of discretion or balancing exercise involved … (Citations omitted).

11    The term “exceptional” does not appear in the legislative scheme. While I respect the views of those who consider it a useful description of the correct approach to what Parliament means in evaluating when a suppression order is “necessary” for one of the grounds in s 37AG, the term “exceptional” suggests some kind of comparative and possibly numerical exercise, which in my respectful opinion may tend to distract from the statutory test of whether an order is “necessary”. For example, in class actions, it is not “exceptional” to make a suppression order over the confidential opinion provided to the Court for the purposes of the settlement approval application; rather, it is a regular practice. In that sense, any person searching the court’s records will find numerous examples of suppression orders over such documents. They may not seem “exceptional”. However, such an order is almost invariably considered “necessary”. That is because of the need in class action settlement approvals for the Court to have the benefit of full and frank advice about the risks involved in the proceeding for the purpose of determining whether the proposed settlement is fair and reasonable.

12    In Ewok Pty Ltd as trustee for the E & E Magee Superannuation Fund v Wellard Limited [2024] FCA 296, the Court said at [103]:

In settlement approval proceedings, the Court is much assisted by the responsible counsel and solicitors expressing their views on the proceeding in frank and candid terms. It would be inimical to the interests of the administration of justice for counsel and solicitors providing those opinions to be reticent in what they say, lest their opinions be disseminated to the world at large. In addition, orders in respect of the confidential opinions are warranted on the basis that they disclose information that is the subject of legal professional privilege claims. I do not consider that any time limit needs to be imposed on orders in respect of these two categories of information in order to ensure that the orders only go as far as is necessary to prevent prejudice to the proper administration of justice.

13    Thus, the issue is not the number of times such an order is made, which might sometimes be a connotation of a term such as “exceptional”, but rather the purposes to be served by the order, and the closeness of its connection to one of the four categories in s 37AG.

14    In this proceeding, the documents over which claims for s 37AF orders are now sought form part of the record before the court in aid of an application for settlement approval pursuant to s 33V of the Act. While of course this is a proceeding which is still adversarial in nature, the Court’s role in a settlement approval means that material is adduced that is unlikely otherwise to make its way into an adversarial proceeding. That is especially so in terms of legal advice, and the expression of legal and factual opinions about the causes of action underlying the proceeding, and the risks inhering in a proceeding if the settlement is not approved. Where a proceeding is the subject of commercial funding arrangements, deductions from the settlement sum sought in fulfilment of those arrangements must be approved by the Court. For the purpose of persuading the Court about the nature and level of deductions that should be approved, particular kinds of evidence are adduced that would not usually be adduced in a proceeding, including about the history and continuation of the commercial funding arrangements. While most of this evidence, once tendered or read as affidavit material in open court, is and should be available to all parties and non-parties, there may be parts of this kind of evidence which satisfy the terms of s 37AG. These attributes of a settlement approval application have a bearing on may be necessary subjects for suppression orders. See DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [36]-[37].

Evidence on the application

15    Counsel for the applicant read affidavits of two solicitors employed by Shine Lawyers into evidence in support of the application for suppression orders: an affidavit of Vicky Antzoulatos dated 6 May 2025, and an affidavit of Craig Allsopp dated 2 June 2025.

Documents over which suppression is sought because of orders made in the Street proceeding

16    The legal representatives for the applicant in this case were also the legal representatives for the applicant in Street v State of Western Australia [2024] FCA 1368. Some material adduced in the present proceeding was also adduced in that proceeding. In Street, Murphy J made suppression orders dated 10 December 2024 and pursuant to ss 37AF and 37AG(1)(a) of the Act over some of the material which was also tendered in this proceeding. Murphy J’s suppression orders are annexed to Ms Antzoulatos’ 6 May 2025 affidavit as annexure VA-31. The evidence at items 4 and 5 of the Street orders is the same evidence relied on in this proceeding; namely the expert report by Bruce Thomson, an actuary, and a report of Joseph Box, a forensic accountant.

Item 1 – Courtbook reference C-1: Paragraph [109(a)] of the First Affidavit of Ms Vicky Antzoulatos sworn 25 October 2024

17    This document is an affidavit of one of the lawyers for the applicant, read in support of the application for settlement approval pursuant to s 33V of the Act. The paragraph over which suppression is sought by item 1 of Annexure A to the applicant’s proposed short minute of order is a summary of material contained in the report of Mr Bruce Thomson referred to below.

Item 5 – Courtbook reference C-1.49 – Exhibit VA-6 Tab 1.2: Expert Report of Bruce Thomson dated 7 October 2024, in relation to Street v WA

18    This document is the actuarial report prepared by Mr Bruce Thomson for the purposes of assessing the likely number of living claimants, and descendants of living claimants, who might be eligible to claim in the Street proceeding. The applicant submits it was prepared primarily for the purposes of counsel’s opinion as to the cap of eligible claimants in the settlement negotiations. Counsel for the applicant submitted it is of the “same flavour” as the confidential opinion. A claim is made over the totality of the document.

19    Mr Thomson’s report was exhibited to the first affidavit of Ms Antzoulatos referred to above. A claim is made over the totality of the document, which is subject to the suppression orders of Murphy J.

Item 6 – Courtbook reference C-1.50 – Exhibit VA-7: Confidential Expert Report of Grant Thornton (prepared for mediation), in relation to Street v WA

20    This document is a report prepared by Joseph Box of Grant Thornton, prepared for the purposes of mediation in the Street proceeding. The report is subject to the suppression orders of Murphy J. The report assesses loss that might be alleged to have been suffered by the conduct at issue in Street. It formed part of the evidence on the settlement approval application in this proceeding. A claim is made over the totality of the document.

Conclusion on all three documents

21    There is a distinct basis for suppression orders over the Thomson and Grant Thornton reports, and Ms Antzoulatos’ summary of the Thomson report. Where a court, differently constituted, has made suppression orders over the same document, the force and effect of those previous Court orders would be undermined if this Court did not make similar orders. The interests of justice at stake here are to preserve the effectiveness of the orders already made by the Court. Where the Court as previously constituted has considered a s 37AF order is necessary, and there has been no appeal from those orders, it would prejudice the interests of the administration of justice not to make similar orders over the same, or substantially the same, document.

22    If there is any debate or issue about the suppression of these documents, the appropriate course would be to go back to the Court as earlier constituted and seek vacation or amendment of the first set of orders.

Documents over which suppression is sought for other reasons

23    It is necessary to say something generally about the arguments said to support the remainder of the claims. The interlocutory application, and some of the submissions described the basis for many of the claims on the need to avoid revealing material subject to “legal professional privilege”. Although there were no express submissions to this effect, the use of that term as opposed to the terms in ss 118 and 119 of the Evidence Act 1995 (Cth) lead me to infer that the applicant approached these ongoing suppression order claims on the basis of common law legal professional privilege, rather than through the Evidence Act: see Mann v Carnell (1999) 201 CLR 1 at [17]-[20].

24    However, there was no evidentiary basis provided for the existence of common law legal professional privilege, bearing in mind that most of these documents were created prior to the only evidence of the retainer between Ms McDonald and Shine, being the costs agreement signed on 10 May 2021. While there were references to a series of legal advices from counsel, the advices themselves were (obviously) not in evidence, nor was there any evidence about the person or persons to whom the advices were initially given, and therefore who was (or could be, on ordinary principles), the client.

25    Once it came to a close examination of each claim, as required for a long term (and possibly permanent) suppression order of the kind sought here over each part or whole of the documents concerned, the need for more precision in how the interests are said to fall within s 37AG(1)(a) and require protection became apparent. Ultimately, since I have concluded the claims should be upheld save for a minor passage about which I raised my doubts in court with counsel, I did not consider it was necessary to revert to the applicant (as the only active participant in the suppression order application) and provide a further opportunity to be heard.

26    If the basis in principle for the claims was common law legal professional privilege, I would have been inclined to reject the claims because of an insufficient evidentiary base as I have indicated above. However, in my opinion, because all of the material over which the orders were sought was adduced in evidence on the settlement approval application, and in doing so suppression was sought over these materials from the time the evidence was adduced, the Court is able to consider the claims in the context of s 119 of the Evidence Act. To rely on s 118 would, in my opinion, raise the same kind of evidentiary difficulties raised by reliance on common law legal professional privilege, given the times at which the documents were created.

27    Many of the documents in which passages are sought to be suppressed are documents dating from a time before the proceeding commenced, and indeed before Ms McDonald was identified as the lead applicant. In character, many of the documents were created for the purposes of deciding whether litigation should be commenced, what causes of action might be identified, and whether the proceeding should be commercially funded – here, by the funder LLS Fund Services Pty Ltd.

28    In almost all of them, Ms McDonald was not a “client” being given legal advice. She was not at that point so involved in the proceeding that she was the person to whom any legal advice was being provided. The one possible exception, a document created after 10 May 2021, was not obviously advice to Ms McDonald: I deal with this below. It was submitted, a little faintly, that in some of the circumstances Shine may have been the client. However, there was no real evidentiary or legal basis for this submission advanced.

29    The claims are better supported by s 119 of the Evidence Act, which provides:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

(a)     a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

(b)     the contents of a confidential document (whether delivered or not) that was prepared;

for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

30    In this context, the client is – at least – the putative group member who could be nominated as lead applicant in the proceeding, whether or not Ms McDonald had been specifically identified at these earlier stages. Section 119 expressly contemplates a person “might” be, in the future, a party to a proceeding, and need not be a party at the time the communication is made.

31    The passages in the legal advices, the actuarial opinions and the summaries of these opinions and advices, were clearly confidential communications, insofar as they refer to strengths and weakness of various causes of action, strengths and weaknesses of the potential group member cohort, and state forensic issues about the conduct of the litigation. At the time these aspects of the communications were made, I am satisfied they were treated as confidential communications. They were all being made within the confines of confidential discussion about whether the proceeding should be commenced, and on what basis, and whether the funder should fund the proceeding, and on what basis.

32    These communications are generally between a lawyer (Shine) acting for a client (the group members, or putative group members and the putative lead applicant) and third parties (the funder), where Shine has (I infer) sent the funder legal advice or expert material it has obtained. The dominant purpose of the communication of this legal advice or the actuarial opinions was for the client (the group members, or putative group members and the putative lead applicant) to be provided with professional legal services by Shine. I am satisfied that at the time of the communications these proceedings were in actual contemplation.

33    Thus, the passages in the documents over which suppression orders are sought are passages that would be protected from admission into evidence in the ordinary course, there being no waiver or other public disclosure. The passages (and the documents in which they appear) were admitted into evidence because of the particular characteristics of class action settlement approval processes, and the need to persuade the Court to approve the settlement, and to approve deductions sought from the settlement fund.

34    It is in the interests of the administration of justice that the Court be as fully informed as it can be before making settlement approval decisions, and before determining if deductions sought are fair and reasonable, in the interests of the group members. To that end, it is in the interests of the administration of justice to encourage frank and full disclosure by funders, and by lawyers acting for group members who have been engaging with funders in order to reach agreement about the funding of a proceeding, of the information base that led to the arrangements they contend support their claim for deductions from the settlement sum. These interests rest on the interests group members have, and the benefit they may be assumed to receive, in having litigation professionally funded and conducted, so that their claims can be made in a way that otherwise may be unlikely to occur: see the settlement approval reasons at [285] and [291].

35    Communications to a funder of litigation for the purpose of it considering the provision of funding, and/or the continuation of funding, have been held to fall within the terms of s 119: see Re Global Medical Imaging [2001] NSWSC 476 at [7]; Apple v Wily [2002] NSWSC 855; Rickard Constructions Pty Limited v Rickard Hails Moretti Pty Limited [2006] NSWSC 234 at [59].

36    It would prejudice these interests of justice if lawyers and funders could not have some assurance that the core passages containing strategic forensic recommendations about a prospective proceeding, and frank assessments of prospects and potential risks of a proceeding, while disclosed to the Court for the purposes of the Court making its approval evaluation, are not disclosed to those with adverse interests (respondents, especially institutional respondents like the Commonwealth), nor to third parties. A limited form of protection – generally of the kind sought on this application – is necessary to ensure as full disclosure as possible to the Court of how the funding arrangements came about and how the risks said to justify the funding commission were assessed, while offering reasonable protection to communications given in confidence and in reasonable anticipation of hotly contested adversarial litigation.

37    The principle of open justice is taken into account by the Court adopting a strict approach to which passages in these kinds of documents should be suppressed, and by not making orders suppressing whole documents, unless persuaded the suppression of the whole document is necessary. An example here is the report of Mr Thomson – had that not already been covered by a suppression order (as I explain above) I would not have been persuaded it was necessary to suppress the whole document. In that example, the suppression of the whole document arises from quite a distinct reason.

38    Outside that somewhat unusual category (of an order made in another, closely related proceeding over the same documents), parties seeking suppression orders have a high threshold to meet to satisfy the Court that such orders should be deployed to maintain the confidential nature of the early assessments about prospects, risk and litigation strategies, made as part of the decision whether or not to fund a class action proceeding. Generally, a funder’s participation in a proceeding, where it seeks very substantial sums to be deducted from the settlement sum as its commission, should require it to be open and transparent about why and how it decided to fund the proceeding, and why and how it settled on an agreement it then seeks to rely upon for the commission it should be paid if the proceeding settles, and which it seeks the Court to approve. It is in the wider interests of the administration of justice, and consistent with the principle of open justice, that these matters all be available for scrutiny.

39    In my opinion, limited suppression is necessary for documents of the kind in issue on this application – the prejudice which the suppression orders seek to avoid is to the willingness of funders to engage with lawyers acting for putative group members, and with counsel, on a confidential basis in early discussions about risks, prospects, litigation strategies and the like so that putative group members retain the potential benefit of being able to have litigation financed and conducted, which otherwise might not be. This material may need to be adduced on a settlement approval application so that the Court can consider it and see the whole context of the funder’s decision to set its commission and fund a proceeding, but it should receive the kind of limited protection sought here, by way of suppression.

Item 2 – Courtbook reference C-1: Paragraph [109(b)] of the First Affidavit of Ms Vicky Antzoulatos sworn 25 October 2024

40    The paragraph in issue, is a summary of material contained in the report of Bruce Thomson prepared for the purposes of this proceeding. See also item 4 below.

Consideration

41    For the reasons explained above, the suppression order in Street means the Court should be astute not to take an approach that might undermine the effectiveness of that previous order. In my view, that principle extends to the protection of substantially similar evidence adduced in this proceeding. For that reason, I am persuaded it is necessary to make a suppression order over the whole of the Thomson report adduced in this proceeding for the purposes of the settlement approval application. That being the case, Ms Antzoulatos’ summary should also be suppressed.

Item 3 – Courtbook reference C-1.3 – Exhibit VA-2 Tab 1: Confidential opinion of counsel

42    This document is a confidential opinion by counsel concerning the risks which attend the prosecution of the applicant’s claims to an adversarial conclusion. It was prepared for the purpose of assisting the court in determining the settlement approval application pursuant to s 33V of the Act. A claim is made over the totality of the document.

Consideration

43    I accept it is necessary in the interests of the administration of justice to suppress the confidential opinion provided to the Court. The Court would not be assisted if counsel providing the opinion did not feel able to be full and frank in how they expressed their views on the risks and challenges in the proceeding going to trial. This is always a document of considerable assistance to a court in determining whether or not to approve a settlement. See eg J&J Richards Super Pty Ltd ATF The J&J Richards Superannuation Fund v Nielsen (No 2) [2025] FCA 431 at [27]; Its Eco Pty Ltd v BPS Financial Limited (Settlement Approval) [2025] FCA 545 at [35]; Kelehear v Stellar Personnel Brisbane Pty Ltd [2025] FCA 295 at [49]; Ewok at [103].

Item 4 – Courtbook reference C-1.46 – Exhibit VA-5: Confidential Expert Report of Bruce Thomson

44    This document is the actuarial report prepared by Mr Bruce Thomson relating to the estimated number of claimants in this proceeding. The equivalent document is subject to a suppression order in Street.

Consideration

45    On the Thomson report, as I said to counsel during argument , I may not have been inclined to order suppression over the whole report, parts of it being anodyne and many attachments being procedural (such as the Court’s practice notes). However, the entire equivalent document is subject to a suppression order made by Murphy J. Much of what might be in Mr Thomson’s Street report could be gleaned from Mr Thomson’s McDonald report, given the similarities in the causes of action and the group member cohort. For the reasons I have explained above, in the absence of any objection or appeal from those orders, it is important to ensure previous orders of the Court are not undermined, and that is a sufficient basis for a similar suppression order to be made in this proceeding.

Items 7 to 17 – Courtbook reference C-4: Affidavit of Stephen James Conrad affirmed 29 October 2024, Paragraphs [71(e)], [72(b)], [72(c)(ii)-(iii)], [72(d)], [73], [76(a)–(e)], [79], [80], [86], [91] and [140]

46    At the time of his affidavit, Mr Conrad was an Executive Officer of Litigation Lending Services Limited, the funder. The affidavit was read in support of the deduction from the settlement sum claimed by the funder.

47    Part of the material exhibited includes documents created by the funder’s Case Assessment Committee: reports, minutes of meetings and the like. It was through these reports, and during these meetings that the funder’s CAC made recommendations about whether or not the funder should fund this proceeding. Contained in those documents are direct and indirect accounts of particular legal advice by counsel provided (I infer) to Shine, and conveyed to the funder, especially about the factual and legal difficulties facing the claims. The documents also contain estimates of the potential quantum of the claim and the potential number of living group members (I infer, derived from Mr Box’s report).

48    Claims for suppression are also made over the contents of parts of the affidavit itself, where Mr Conrad summarises what is in some of the CAC documents.

Consideration

49    I accept all the claims for suppression over paragraphs in Mr Conrad’s affidavit where he described the matters I have summarised in [47] above. That is for the general reasons I have expressed at [23] to [39] above. The nature of the legal advice is a series of opinions from counsel given to Shine. While I accept there may be some parallels with the reasoning in IOOF Holdings Ltd v Maurice Blackburn Pty Ltd [2016] VSC 311 at [82]-[93], they are inexact, and here they are without any evidentiary basis. The better inference, and the more principled and likely basis in my opinion, is the one I have explained at [23] to [39] above.

50    Some of the paragraphs contain direct quotations from legal advice, where the legal advice was a confidential communication for the purposes I have explained above, and there has been no waiver. Others were summaries of legal advice where a failure to suppress the summary would disclose the substance of the legal advice itself. Others contain legal advice about estimates of quantum for the claim. Some of the statements are reasonably generally expressed, but disclosure still reveals the substance of the legal advice. There is no doubt that the dominant purpose for all these communications was to assess the risks and challenges of a piece of litigation then in active contemplation, and about which the funder was considering entering into funding arrangements. That was the dominant purpose of the communication of counsel’s advice from (I infer) Shine to the funder, and to its CAC.

51    I do not accept the claims over [72(d)]. The statements in that paragraph are at a level of generality about the difficulties in the claim which is disclosed repeatedly in the material. Further, the source of the statements in this paragraph is not legal advice but a recommendation emanating from the CAC, which I infer was a general assessment by CAC not limited to the terms of any legal advice.

Items 18 and 31 – Courtbook reference C-4.4 – Confidential Exhibit SC1:17-31: First Report to CAC, paragraphs [2.10], [3.9] and [3.10]

52    This document is a report to the CAC. Mr Conrad deposes that the CAC is an investment committee within the funder which considers legal risk and decides whether an application should proceed to the funder’s Board. The report, dated 20 August 2020, is a recommendation to the CAC that this proceeding be funded.

53    Suppression is sought over some of the quantum estimates for the claim, which are drawn from counsel’s advices, and also a short paragraph summarising aspects of the legal advice from counsel.

54    At the hearing, counsel for the applicant did not press a claim for suppression orders over paragraphs [2.8] and [2.9] of this document.

Consideration

55    I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Items 19 and 20 – Courtbook reference C-4.5 – Confidential Exhibit SC1:32-34: First CAC Meeting Minutes

56    This document records minutes of a meeting of the CAC held on 1 September 2020, at which the Committee discussed the prospects of this proceeding, and did not recommend the claim for funding.

Consideration

57    Again, the passages over which orders are sought are either direct quotations from counsel’s advice, or close summaries of that advice. I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Item 21 – Courtbook reference C-4.6 – Confidential Exhibit SC1:35-38: Second CAC Meeting Minutes

58    This document records minutes of a meeting of the CAC held on 15 December 2020. The minutes record that the CAC considered various matters relevant to the prospects of this proceeding, and determined to recommend the class action following receipt of various documents.

Consideration

59    Again, the passages over which orders are sought are either direct quotations from counsel’s advice, or close summaries of that advice. Some of this includes strategic legal advice. I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Item 22 – Courtbook reference C-4.7 – Confidential Exhibit SC1:39-42: Third CAC Meeting Minutes

60    This document records minutes of a meeting of the CAC held on 25 March 2021. The minutes record that the CAC again considered various matters relevant to the prospects of this proceeding, and resolved to seek various pieces of legal advice.

Consideration

61    Again, the passages over which orders are sought are either direct quotations from counsel’s advice, or close summaries of that advice. These passages again include strategic legal advice about the potential width of the claim. I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Items 23 to 25 – Courtbook reference C-4.8 – Confidential Exhibit SC1.43-46: Fourth CAC Meeting Minutes

62    This document records minutes of a meeting of the CAC held on 6 May 2021, shortly before the applicant entered into the costs agreement with her lawyers and the LFA with the funder on 10 and 11 May 2021 respectively. The CAC considered the advice it had sought at its previous meetings, and sought further documents relevant to their assessment of the proposed proceeding.

Consideration

63    Again, the passages over which orders are sought are either direct quotations from counsel’s advice, or close summaries of that advice, this time principally about quantum, and again about legal strategies involved in the kind of causes of action to be identified. I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Items 26 to 28 – Courtbook reference C-4.9 – Confidential Exhibit SC1.47-53: Fifth CAC Meeting Minutes

64    This document records minutes of a meeting of the CAC held on 26 May 2021, which was the first such meeting held after the applicant entered into the costs agreement with her lawyers and, it was submitted, could be considered to have retained Shine. Counsel for the applicant submitted that it was open to the Court to infer that some of the information in this document was legal advice provided to the applicant during the period of the retainer. I do not consider there is an evidentiary basis for this submission. There is no evidence how many, or which, legal advices were provided to the applicant – nor whether they were the ones referred to in earlier documents, or new ones.

65    The minutes record various pieces of legal advice provided by Shine and the applicant’s counsel about aspects of the causes of action.

Consideration

66    It is not clear to me how it might be said that any of these communications are covered by any privilege as between the applicant and Shine. These are the funder’s documents, and the purpose of the communication of legal advice is a purpose related to the funder’s decision whether to participate in the contemplated litigation as funder. That is why I have approached the matter as set out above.

67    Nevertheless, the passages over which orders are sought are either direct quotations from counsel’s advice, or close summaries of that advice. Some of this includes strategic legal advice. I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Items 29 and 30 – Courtbook reference C-4.10 – Confidential Exhibit SC1.54-57: CAC Board Memo

68    This document is a memorandum provided to the funder’s Board by the CAC on 31 May 2021. In the memorandum, the CAC declined to recommend the proceeding to the Board for funding, but noted that the Board may nevertheless consider whether it wished to do so.

Consideration

69    Again, the passages in this memorandum over which suppression is sought are either direct quotations from legal advice or close summaries. There is some strategic legal advice as well. This document sets out all the legal advices that had been obtained to this point, and no claim is made over those descriptions, correctly so being purely factual matters.

70    I accept suppression orders are necessary over the passages in this document, for the reasons set out at [23] to [39] above.

Section 37AJ: period of the order

71    I am satisfied that it is reasonably necessary for the orders that the Court makes today to remain in effect for the longer term, likely at least until finalisation of the whole proceeding and, more probably than not, thereafter in a permanent sense, subject to any application to the contrary. The interests in protecting the confidential nature of communications between lawyer and client continue even once a proceeding is finalised.

Conclusion

72    Therefore, aside from one exception, I have accepted the claims for suppression sought by the applicant in the interlocutory application. There will be orders accordingly. As I explained during the hearing, once the distribution of the settlement sum is finalised, the parties will need to return to court to discuss what other parts of the evidence should be available in the Court’s online file, so that the public has appropriate access to the material before the Court in an accessible manner. It may be at this point that if there are any objections to the orders made today continuing as effectively permanent orders, they could be made at that hearing.

Associate:

Dated:    13 June 2025

ANNEXURE A